Homeowners not required to flee intruders: court

When someone is under attack in their own home, fleeing the premises is never a requirement, the Ontario Court of Appeal has affirmed.

In its decision this week, the court ordered a new trial for Cedric Forde, a career criminal who, in 2006, stabbed rival Clive McNabb after spotting him at the door of his bedroom. Mr. Forde was convicted of manslaughter for the killing in 2007.

According to an appeal court decision released Wednesday, the trial judge incorrectly told the jury to consider whether Mr. Forde could have “extricated” himself from the confrontation with Mr. McNabb.

“In my view … ‘retreat’ was not a proper factor for the jury to consider,” said appeal Judge J.A. LaForme.

Related

The ruling — coming only days after an Eastern Ontario father and son apparently confronted a 41-year-old who was attempting to break into their home, and as Ontario Provincial Police ponder whether to lay charges in the alleged burglar’s death — confirms Canadian homeowners can take violent steps to protect their home.

“You’re expected to be absolutely safe in your home, you may not expect to be safe in a gas station or a store, but in your home, that’s something that’s a given,” says Dahn Batchelor, a Mississsauga, Ont.-based criminologist.

“If someone breaks into your home, it seems to me that he does so at his own risk.”

In most cases, claiming self defence after a violent encounter can be difficult when it could have been possible for the assailant simply to run away. In the home, however, courts have declared the rules are different.

“The law is clear that flight from one’s own home is not a reasonable option for self-preservation, and that the defence of self-defence will still apply even if there is another way out of the house,” reads a 1998 decision by the British Columbia Court of Appeals.

Even then, homeowners are expected to exercise a “reasonable” amount of force when dealing with home intruders.

In 2006, police investigated Burlington, Ont., venture capitalist Don Shaxon after he tackled a drunk 16-year-old who had entered his home. “You see someone who doesn’t belong, they come at you, your wife is three to five feet behind you, instinct takes over,” said Mr. Shaxon at the time. Most recently, in August, a Toronto man was charged with aggravated assault for repeatedly stabbing an intruder he found hiding in his girlfriend’s mother’s house.

In the case of Mr. Forde, he was facing a known rival. Both men had long criminal histories, and had fought before. “McNabb had a propensity for violence against the appellant and was the aggressor in the fatal confrontation between them,” the appeal court decision reads. When Mr. McNabb stormed into Mr. Forde’s bedroom, he was belligerent and looking to collect a debt from one of Mr. Forde’s tenants. “I’ve been stabbed before by this man; I’ve been attacked by this man. I’m not taking that chance of running out and he falling on top of me,” Mr. Forde said at trial.

When self-defence cases proceed to trial, juries are often quite sympathetic to homeowners, or even shopowners, who may have used excessive force against an intruder. In 1991, Francois Guerin opened fire on two robbers as they ran away from his wife’s Montreal convenience store, killing one and wounding the other. Police charged Mr. Guerin with criminal negligence causing death and criminal negligence causing injury, but was acquitted by a jury.

In the United States, 31 states are under “Castle Doctrine” laws. Unlike Canada, where proportional force must be used against an intruder, many castle doctrine laws allow deadly force to be used against any kind of potentially violent trespasser. Of course, the law has not been immune to unintended consequences. In 1992, Yoshihiro Hattori, a Japanese exchange student living in Baton Rouge, La., accidentally knocked on the front door of the wrong house en route to a Halloween party. While Mr. Hattori was walking back to his car, homeowner Rodney Peairs emerged from his garage and shot him point blank with a .45 revolver. A Louisiana jury ultimately acquitted Mr. Peairs.

Early Sunday, alleged burglar Corey Blaskie was killed in the midst of a “confrontation” in Arnprior, Ont., said Const. Peter Leon, a spokesman for Ontario Provincial Police. As of Thursday, investigators had not ruled out the possibility that charges could be laid against the home’s residents.

“I would say that the investigation is ongoing and that is part of what has to take place yet,” said Const. Leon.